Ed. Note: Last week, the U.S. Sentencing Commission’s 2009 Amendments to the federalSentencing Guidelines went into effect. Once a week this month, we will post an analysis of some of the more important changes to the Guidelines. The Sentencing Commission’s reader-friendly guide to the 2009 amendments is available here.

The Sentencing Commission has made it clear that judges now have more specific authority to impose sentencing options other than simply putting the defendant in prison. The Commission added intermittent confinement as a sentencing option, as well as adding community service as a potential mandatory condition of probation and reaffirming that community confinement is a possible condition of supervised release.

Intermittent Confinement

The most important alternative sanction addressed by the Sentencing Commission this year is the availability of intermittent confinement as an alternative to a traditional prison sentence. Before now, intermittent confinement has never been listed as a “sentencing option” in Chapter 5, Part F of the Guidelines. The Commission added a new guideline at §5F1.8 to specifically authorize such an option.

“Intermittent confinement” usually means spending only nights and weekends in custody, but judges may specify other intervals of time. The new sentencing option is available only during the first year of probation or supervised release. As a condition of supervised release, it is available only for violation of a condition of supervised release and only when facilities are available.

Criminal defense lawyers should explain to judges that the new guideline (and the Judicial Administration and Technical Amendments Act of 2008, which inspired it) show that the Commission and Congress recognize that judges should consider sentences other than traditional imprisonment.

Community Confinement

Until now, there has been considerable confusion regarding whether a judge has authority to sentence a defendant to community confinement (in a community corrections facility, such as a halfway house) as a condition of supervised release. This option can be an important part of a defense sentencing recommendation because judges often want defendants to have some restriction on their liberty, even if they have been convinced that supervised release is appropriate. The recent amendments clear up the confusion, reaffirming in the Guidelines that residency at a community corrections facility is a possible condition of supervised release.

The confusion stemmed from the Antiterrorism and Effective Death Penalty Act of 1996 (the Act). The Act renumbered 18 U.S.C. § 3563(b), which listed potential conditions of probation. Unfortunately, the Act failed to make all of the necessary changes to statutes referring to subsections of the renumbered statute. This oversight created confusion about many of the conditions that had been renumbered.

Previously, 18 U.S.C. § 3583(d), which addresses conditions of supervised release, stated that any of the conditions listed in § 3563(b) could be imposed as a condition of supervised release, except the condition listed at (b)(11). Prior to the Act, that condition was intermittent confinement. After the renumbering, however, community confinement became (b)(11). Because § 3583(d) was not amended to conform to the renumbering, community confinement was unintentionally excluded as an allowable condition of supervised release. Congress finally corrected its mistake by amending § 3583(d) to refer to (b)(10) (intermittent confinement) with the conditions discussed above.

Community Service

Another point of confusion created by the Act was whether community service was a potential mandatory condition of probation. The new amendments clarify that community service is a potential mandatory condition of probation in §§5B1.3(a)(2) and 8D1.3(b), instead of notice to victims and residential restrictions.

Prior to the renumbering by the Act, judges were usually required to include a fine, restitution, and/or community service as mandatory conditions of probation, pursuant to 18 U.S.C. § 3563(a)(2). After the Act’s renumbering fiasco, § 3563(a)(2) required judges to include restitution, notice to victims, and restrictions on the defendant’s residence. The Commission recognized the mistake, but changed the Guidelines and included a note explaining that the change may have been unintended by Congress.

Congress finally corrected this mistake, as well, by amending § 3563(a)(2) to require restitution and/or community service, unless a fine has been imposed. As a result, the Commission amended the Guidelines accordingly. The amendments change §5B1.3(a)(2) and §8D1.3(b) to require restitution and/or community service as mandatory conditions of probation for a felony, unless the court has imposed a fine or finds on the record that extraordinary circumstances would make such conditions plainly unreasonable.